ALJDEC decisions subject to certification as final

2020A-03288-NPC-ROC · Registrar of Contractors · 2020-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Allen Matthews,

COMPLAINANT

Trueline Custom Homes LLC,

License No. ROC 213461, 270870,

RESPONDENT

No. 2020A-03288-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING:

APPEARANCES: Allen Matthews on his own behalf; Erika L. Johnsen, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On August 28, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on September 30, 2020 at the Office of Administrative Hearings.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the complaint and citation that were served on Respondent Trueline Custom Homes LLC on July 23, 2020.

Respondent holds License Nos. 213461 and 270870 issued by ROC. Christopher Cleland is Respondent’s qualifying party.

Complainant is Allen Matthews.

Through the citation and Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Between about May 14 and June 25, 2020, Complainant delivered decomposed granite to four homes being built by Respondent. The material was used to build the pads for the homes. To build the pads, Respondent excavated clay soils and replaced those with the decomposed granite and AB material purchased from another supplier.

The parties do not dispute that Complainant delivered 193 truckloads of material, but only one load was weighed and the parties dispute how many tons of material were delivered. The load that was weighed contained twenty tons.

The parties did not have a written contract and the evidence shows that they did not have a meeting of the minds as to the price for the material.

Mr. Matthews testified to that the price of the decomposed granite was $187.50 per truckload, regardless of the weight of material being delivered in each load.

On prior projects, Complainant had delivered the material and built the pads for Respondent. Mr. Cleland testified that for those other projects, Respondent paid Complainant $7.50 per ton for the decomposed granite, which is what he assumed or believed the price would be for the decomposed granite at issue.

Complainant was using two trucks to deliver the decomposed granite, one which was larger than the other, but the record does not show the capacity of either truck.

On July 7, 2020, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $36,367.50. Prior to the hearing, Respondent paid to Complainant $28,950.

Respondent arrived at the $28,950 figure by multiplying 193 truckloads by 20 tons per truckload, which is 3860 tons, and applying the $7.50 per ton rate.

Although Respondent paid Complainant for 3860 tons, Mr. Cleland testified to the effect that Complainant had actually delivered only 3735 tons. Mr. Cleland arrived at this value by calculating the number of cubic yards of material that was excavated for each pad and determining how many tons of decomposed granite would be required to fill that volume using a value of two tons per cubic yard.

Mr. Matthews testified to the effect that Mr. Cleland’s calculations were flawed because in one case he used the wrong depth for the excavated material, and in the second case, he did not account for the slope of the natural grade.

Mr. Cleland did not agree that the slope of the natural grade had any effect on his calculations based on how he sets his grade pins and how he measures the volumes.

Mr. Matthews testified that his calculations show that Complainant was delivering about 25 tons per truckload.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor ....” Ariz. Rev. Stat. § 32-1154(A)(10).

It has not been shown by a preponderance of the evidence that Respondent owes Complainant more than $750 for materials purchased in connection with Respondent’s operations as a contractor because the parties did not have a “meeting of the minds” as to the price for the decomposed granite and do not even agree on whether the material was to be paid for by the ton or by the truckload.

In has not been shown that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(10). Consequently, this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2020-03288 is dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is forty days after the date of that certification.

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-137160-45720000Done this day, October 19, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000